Richards v Martin
| Jurisdiction | England & Wales |
| Judge | HER HONOUR JUDGE HUGHES QC |
| Judgment Date | 11 August 2017 |
| Neutral Citation | [2017] EWHC 2187 (Fam) |
| Court | Family Division |
Children arrangements – Breach – Committal – Persistent failure to comply with order – Whether good reason – Representation – Form of penal notice – Listing in open court – Informing media – Whether good reason for failure to comply – Sentence.
After the parents’ separation all four of the children lived with the father. Some years later, the eldest child, now 13, left the father’s home, making it very clear that she wanted no further contact with the father. Under a court order the father was required to take the younger children, now aged 11, 10 and 9, to a local library to be available for five hours for contact with the mother. However, the father failed to comply; his account was that the younger children did not want to see the mother, although there was evidence that the children enjoyed seeing the mother and occasionally contacted the mother and said that they wanted to see her.
The court suggested that if the younger children spent time with the mother, arrangements might be made for the father to see the eldest child despite her expressed wishes. This resulted in the three younger children meeting with the mother as arranged and apparently having a lovely time. When the case returned to court, the judge, having reviewed the social work report, took the view that the problems with the eldest child were too deep-seated simply to restore the father’s contact with her. At this point, the younger three children once again stopped being available for contact with the mother.
The father raised an allegation of sexual abuse, claiming to have received text messages and telephone messages from the children which supported these allegations. On investigation it emerged that there were no such messages. Nonetheless, the local authority investigated sexual abuse; their report confirmed that there was simply no evidence of sexual abuse.
The mother was alleging nine breaches of court orders. An order made in June flagged up that a hearing would take place on 7 August to determine the committal application. An oral hearing was listed before this date; however, this had to be adjourned to the 7 August hearing, because the judge was not available. Seemingly, only the mother was informed about the adjournment and the father attended court on that day. He did not attend court for the adjourned hearing. Instead the paternal grandmother sent a message to inform the court that the father was ill. The court took the view that the father should have been in direct contact with the court, giving an indication as to when he would be available, and issued a tipstaff warrant.
The father was arrested on 9 August; the committal hearing did not take place until 11 August because no-one could be found to represent him. When the father was about to be remanded in custody on 10 August he suggested that the mother could ‘have the kids’ if he was released immediately. The following day he suggested that if he was released and the children were left with the mother, residence and contact issues could wait until after consideration of the s 7 report. Eventually, a barrister and a solicitor came forward to act pro bono and argued on the father’s behalf that the penal notice had not been displayed on the first page of the relevant orders; that the case had not been appropriately listed; and that the media had not been informed.
Held – (1) While there was a requirement for a penal notice on judgment and orders, and a warning to the person required to do or not to do the act in question was to be prominently displayed on the front of the copy of the judgment or order, in this case the father had not been unaware of what was required. It was very important to draw such matters to parties’ attention because, in many cases where injunctions were obtained, parties would not be present in court. However, this was a case where the father had attended the court on all occasions except 7 August and had been warned about his conduct. The penal notice had been clearly put on all the documents; whilst it was not necessarily on page one, it was certainly in some cases on page two. The court would override the requirement for the warning to be on page one (see [7]–[9], below).
(2) Once the court had become...
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